Construction, Forestry, Maritime, Mining and Energy Union

[2022] FWCA 4494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union

(AG2022/5216)

MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD AND THE CFMEU (VICTORIAN CONSTRUCTION AND GENERAL DIVISION) MAJOR CIVIL CONTRACTOR ENTERPRISE AGREEMENT 2020-2023

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 22 DECEMBER 2022

Application for approval of the McConnell Dowell Constructors (Aust) Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023

An application has been made for approval of an enterprise agreement known as the McConnell Dowell Constructors (Aust) Pty Ltd and the CFMEU (Victorian Construction and General Division) Major Civil Contractor Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Construction, Forestry, Maritime, Mining and Energy Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 December 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission for approval of a major civil contractor enterprise agreement between McConnell Dowell Constructors (Aust) Pty Ltd and the CFMEU (Victorian Construction and General Division) for the period 2020-2023. The application was contested by the Australian Building and Construction Commission (ABCC). The Commission was tasked with determining whether the agreement was suitable for approval under the Fair Work Act 2009.

The central issue before the Commission was whether the agreement met the requirements of section 234 of the Act, specifically whether it provided for fair and efficient workplace relations, and whether it included provisions that were contrary to the public interest. The Commission had to consider whether the agreement provided for adequate protections for employees and whether it facilitated productivity and economic efficiency.

The Commission found that the agreement did not meet the requirements for approval under section 234 of the Act. The agreement contained provisions that were contrary to the public interest, including provisions that were not in the best interests of employees and that would undermine productivity and economic efficiency. The Commission also found that the agreement did not provide adequate protections for employees in relation to minimum wage rates, penalty rates, and other employment conditions. As a result, the Commission refused to approve the agreement. The Commission's decision was based on a detailed analysis of the agreement and the evidence presented by the parties. The Commission concluded that the agreement did not provide for fair and efficient workplace relations and that it was not suitable for approval. The Commission's decision was final and could not be appealed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established